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WHERE HAVE ALL THE CASES GONE?

[Posted January 7, 2013] To be accurate, the title of this post should be, “Where Have All the Appeals Gone?” but that doesn’t have the meter of Pete Seeger’s masterpiece, so I’ll leave it as it is.

Back in August, I posted an essay that was probably of interest to appellate geeks only; it analyzed statistics on writs granted (civil and criminal) and procedural dismissals. It’s too early to update that essay with stats from 2012, since they won’t be out for a couple of months yet. But a recent development has highlighted one aspect of what I described in that report, and warrants an essay now. I promise that the statistics here will be few and easy to digest, even for English majors.

There are unmistakable signs that the Supreme Court’s argument docket is shrinking, at a surprising pace. Today was the scheduled beginning of the January session of the court, with arguments continuing until an anticipated Friday opinion day. That’s the way it’s been for many years, with an occasional shortening to four days.

But not this week. For the second straight session, the court will entertain arguments over just three days – tomorrow through Thursday – and Thursday will be opinion day. In November, there were just 14 cases on the docket. This week, there are 15, but three of them have been consolidated for argument, so the justices will entertain only 13 oral arguments all week. In contrast, a year or two ago, the court routinely scheduled between 25 and 30 appeals per session.

There’s more. I reported back in August that the number of criminal writs had dropped off a table (I could say “off a cliff,” but that has problematic connotations nowadays) in the past two years. Here, taken from that essay, is the number of such writs issued in the previous six years:

2006: 43

2007: 61

2008: 49

2009: 56

2010: 49

2011: 31

That last figure looks remarkably small, but brace yourself: According to my informal count, there were just 13 writs issued in criminal cases in all of 2012. Thirteen! That’s a quarter of the average pace from 2006-10. The justices have just about stopped issuing writs in criminal appeals. Based on recent figures, and upon my admittedly anecdotal sense of things, I suspect that the final figures for civil writs will be down, too, though not as precipitously as with the criminal appeals.

What does this mean for appellate practitioners? Well, I don’t know for sure yet, until I see the final stats in March. But it looks to be getting harder to get a writ in civil cases, and it’s just about impossible to get one in a criminal appeal.

Civil cases: Historically, the court has issued writs in 21% of civil appeals, but the rate in 2012 may be significantly lower than that. That gives added weight to the old appellate axiom that the best appellate strategy is usually to win the case in the trial court in the first place. Unless a trial judge has done something like take away a jury verdict or grant a demurrer without leave to amend, appellees are usually in the appellate driver’s seat (until a writ is granted, in which case the odds are swapped, and the case is more likely than not headed for a reversal). If the rate of civil writs granted really has slowed noticeably, the appellee’s advantage will have grown.

Criminal cases: If you’re representing a criminal defendant who has been convicted and wants to appeal, I have little succor to offer you. Your first stop, of course, is in the Court of Appeals, which is not exactly the maternity ward for reversals. In recent years, the Supreme Court has proven to be a more fertile ground for criminal appellants; on occasion, we’d see a case in which the CAV refused even to grant a writ, and the Supreme Court took the case and reversed. The sharp truncation of the criminal appellate docket in the Supreme Court makes it tougher on appellants just to get the full court’s attention, much less get a conviction reversed.

One last set of numbers: We’ll take a quick look at the number of petitions for appeal that have been granted in specific years, at five-year intervals (note that this is per year, not the accumulated total for five years).

1996: 237

2001: 213

2006: 187

2011: 132

To describe this as “trending downward” would be an understatement.

The appellate lawyer in me sees this trend and worries, just a little. If there are fewer appeals, there’s less demand for appellate lawyers. Of course, the demand will never dry up entirely; the court will continue to grant writs to review judgments of all kinds. And there’s no truth to the scurrilous rumor that if the writs taper off even further, the newer justices might get laid off for lack of work.

But beyond a sharp spike in one unfortunate appellate category – procedural dismissals of appeals – I don’t have a satisfactory explanation for where all the appeals have gone. There are several possible explanations (the “gaps” in Virginia jurisprudence are getting filled in; lawyers have gotten increasingly less capable of convincing justices to grant writs; the justices have made a concerted decision to cut down on their merits workload; etc.), but none of these are satisfactory. The justices probably know, but they ain’t talkin’.